Reversed and Remanded and Opinion filed =
September=20
27, 2007. =
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-05-00852-CV
_______________
V.E. JOAHANNE THOMAS-SMITH,=20
Appellant
V.
JAMES E. MACKIN,=20
Appellee
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On Appeal from 155th District =
Court
Waller County, Texas
Trial Court Cause No.=20
03-05-16832
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O P I N I O N
In this defamation =
case, V.E.=20
Joahanne Thomas-Smith appeals on numerous grounds a judgment =
entered=20
in favor of James E. Mackin. We reverse and =
remand.
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Background
During a telephone=20
conversation, Thomas-Smith, the Provost and Senior Vice President =
of=20
Academic and Student Affairs of Prairie View A&M University=20
(APrairie =
View@), questioned Dr. =
Gerard=20
Rambally, the Dean of Arts and Science of Prairie View, about=20
Rambally=3Ds reasons for =
recommending=20
Mackin, a Ph.D. in chemical oceanography, to be appointed interim =
Chairman=20
of the Prairie View Chemistry Department and about not having =
assigned=20
Mackin a full teaching load for the upcoming semester. One =
of=20
Thomas-Smith=3Ds questions or =
comments in this=20
conversation was to the effect that Mackin and Rambally had a =
Alove@ or Alover@ relationship. =
After=20
Mackin, a married man, learned of this comment (the Acomment@), he filed this =
action for=20
slander against Thomas-Smith. The case was tried to a jury, =
and=20
judgment was entered in accordance with the jury=3Ds verdict, awarding =
Mackin=20
$40,000 in damages against Thomas-Smith.
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Directed Verdict
Thomas-Smith=3Ds first issue =
contends that the=20
trial court erred by denying her motion for directed verdict =
on the=20
ground that the comment was not defamatory as a matter of law =
because it=20
was a=20
rhetorical hyperbole rather than a statement of fact.
Slander=20
is a defamatory statement=20
that is orally communicated to a third person without legal =
excuse. =20
Randall=3Ds Food=20
Markets, Inc. v. Johnson, 891=20
S.W.2d 640, 646 (Tex. 1995). Among other things, a =
defamatory=20
statement must be sufficiently factual to be susceptible of being =
proved=20
objectively true or false, as contrasted from a purely subjective=20
assertion. See Milkovich v. Lorain Journal Co., 497 =
U.S. 1,=20
21-22 (1990). It must also be such that a reasonable =
factfinder=20
could conclude that the statement implies an actual assertion of =
the=20
purported fact, as contrasted from loose, figurative, or =
hyperbolic=20
language that would negate the impression that the declarant was =
seriously=20
maintaining that the fact was literally true. See =
id.
An=20
allegedly defamatory publication is construed as a whole in light =
of the=20
surrounding circumstances based on how a person of ordinary =
intelligence=20
would perceive it. New Times, Inc. v. Isaacks, 146 =
S.W.3d=20
144, 154 (Tex. 2004). The appropriate inquiry is thus =
objective, not=20
subjective. Id. at 157. Whether a statement is =
capable=20
of a defamatory meaning is generally a question of law for the=20
court. Id. at 155. But when a publication is of =
ambiguous or doubtful import, the jury must determine its =
meaning. =20
Id.
In this=20
case, by describing a relationship between individuals, the =
comment was=20
sufficiently factual to be susceptible of being proved true or=20
false. However, it is not clear from the context and =
surrounding=20
circumstances whether Thomas-Smith was making the comment: (1)=20
sarcastically, to figuratively express her disbelief concerning =
the=20
recommendation; or (2) sincerely, out of concern that the =
recommendation=20
had been made for improper motives. Because of this =
ambiguity,=20
Thomas-Smith=3Ds first=20
issue fails to demonstrate that the comment was not defamatory as =
a matter=20
of law, and is overruled.
Thomas-Smith=3Ds second=20
issue contends the evidence conclusively proves there was no =
publication=20
because the parties who heard the comment did not understand it to =
be=20
defamatory. A person publishes a slanderous remark if she=20
communicates it to a third person who is capable of understanding =
its=20
defamatory meaning and in such a way that the person did =
understand its=20
defamatory meaning. Lozano v. Lozano, 983 S.W.2d 787, =
793=20
(Tex. App.CHouston=20
[14th Dist.] 1998), aff=3Dd in part,=20
rev=3Dd in part=20
on other grounds, =
52 S.W.3d=20
141 (Tex. 2001).
The=20
undisputed evidence in this case shows that two people heard and=20
understood the comment. One was Rambally, who understood it =
to=20
assert that Mackin had a sexual or romantic relationship with him =
and that=20
he (Rambally) was appointing people to positions based on his =
relationship=20
with them rather than their credentials. The second person =
was=20
Darlene Knebel, Rambally=3Ds=20
secretary, who understood it to assert that Rambally was =
recommending=20
Mackin to be Chemistry Department Head because of =
Rambally=3Ds=20
A>love=20
relationship=3D@ =
with=20
Mackin. Because there was evidence of publication,=20
Thomas-Smith=3Ds second=20
issue fails to demonstrate that the trial court erred in denying =
the=20
motion for directed verdict on this ground, and is =
overruled.
Jury=20
Charge
Thomas-Smith=3Ds fifth=20
issue contends, in part, that the trial court erred by refusing =
her=20
requests to include in the court=3Ds charge=20
to the jury questions on the defenses of official immunity and =
qualified=20
privilege.
A trial=20
court must submit the questions, instructions, and definitions =
that are=20
raised by the pleadings and evidence. Tex. R. Civ. P. 278. A judgment =
cannot be=20
permitted to stand when a trial court=3Ds refusal=20
to submit a question denies a party the submission of a viable =
affirmative=20
defense that has been so raised. Exxon Corp. v. =
Perez, 842=20
S.W.2d 629, 631 (Tex. 1992).
One of the=20
elements of the defense of official immunity is good faith, which =
requires=20
an objective determination of whether a reasonably prudent =
official, under=20
the same or similar circumstances, could have believed that his =
conduct=20
was justified based on the information he possessed when the =
conduct=20
occurred. Joe v. Two Thirty Nine Joint Venture, 145 =
S.W.3d=20
150, 162, 164 (Tex. 2004). As evidence of the element of =
good faith=20
to support the submission of a jury question on official immunity, =
Thomas-Smith relies on the testimony of George C. Wright, =
President of=20
Prairie View, and Thomas-Smith.
However,=20
the testimony of Wright that Thomas-Smith=3Ds brief=20
cites for this purpose is deposition testimony that was =
attached as=20
an exhibit to Thomas-Smith=3Ds motion=20
for summary judgment. Because Thomas-Smith=3Ds brief=20
cites no portion of the record where any such testimony by Wright =
was=20
admitted into evidence at trial, it does not establish that this =
evidence=20
was before the jury so as to support a question in the =
court=3Ds=20
charge. Similarly, the relied upon testimony by Thomas-Smith =
was the=20
following:
Q: =20
And in that conversation, August of 2002, whatever statement that =
was,=20
that was said, do you believe it was lawful?
A: =20
Yes. Whatever statement was said in the conversation about =
the=20
teaching load or whatever, I believe it was lawful.
* =20
* =20
* *
Q: =20
When you were asked about whether it was lawful, what did you, =
what was=20
your definition of being lawful?
A: =20
Well, within the role and scope of my job and not against the=20
constitution, or policies or whatever.
Q: =20
[I]f the statement was made that you say may have been made, and =
that=20
statement was that you, Dr. Rambally and Dr. Mackin have a lover=20
relationship, and that is why you wanted to appoint him as interim =
dean,=20
interim department, would that be lawful?
A: =20
Sir, if I said that, it would be lawful.
However,=20
this testimony does not raise a fact issue on the good faith =
element of=20
official immunity because: (1) it does not address the good faith =
standard=20
(whether a reasonably prudent official, under the same or similar=20
circumstances, could have believed that his conduct was justified =
based on=20
the information he possessed when the conduct occurred); (2) it is =
Thomas-Smith=3Ds=20
subjective view rather than evidence of an objective standard; and =
(3) it=20
is conclusory, providing no factual basis or foundation to support =
the=20
stated conclusion. Accordingly, we overrule the portion of=20
Thomas-Smith=3Ds fifth=20
issue that challenges the trial court=3Ds denial=20
of her request to submit a jury question on official immunity and =
turn to=20
her challenge the denial of a jury question on the defense of =
qualified=20
privilege.
Where, as=20
here, there is not alleged to be a public figure plaintiff, a =
media=20
defendant, or a defamatory statement involving a matter of public =
concern,=20
the falsity of the statement is generally presumed,=20
and the truth of the statement is an affirmative defense that must =
be=20
proved by the defendant. See Randall=3Ds food=20
Markets Inc. v. Johnson, 891=20
S.W.2d 640, 646 (Tex. 1995). Similarly, in the absence of a=20
privilege, malice=20
is inferred from the fact that a defamatory statement is =
false. =20
See Int=3Dl &=20
G.N.R. Co. v. Edmundson, 222 S.W.=20
181, 183 (Tex. Comm=3Dn App.=20
1920, holding approved); Bradstreet Co. v. Gill, 72 Tex. =
115, 9=20
S.W. 753, 121 (Tex. 1888). Conversely, where a defamatory =
statement=20
is privileged, the inference of malice is overcome, and it becomes =
the=20
plaintiff=3Ds burden=20
to establish malice by evidence other than the falsity of the =
statement,=20
if any. Id.
In this=20
case, Thomas-Smith requested a jury question on whether she was =
entitled=20
to the following qualified privilege:
AQualified=20
privilege@ =
exists=20
when a communication is made in good faith and the author, the =
recipient,=20
or a third person has an interest that is sufficiently affected by =
the=20
communication. The effect of the privilege is to justify the =
communication which is made with proper motive and without actual=20
malice. A finding of actual malice must be supported by =
clear and=20
convincing proof.[]
There is=20
no dispute that such a qualified privilege exists under Texas =
law. =20
See, e.g., Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.=20
1994). Because Thomas-Smith pleaded the affirmative defense =
of=20
qualified privilege, the trial court was required to submit this =
question=20
if the defense was raised by the evidence. See Tex. =
R. Civ.=20
P.=20
278.
In that regard, =
Thomas-Smith=20
testified that she made the comment during discussions on a =
subject about=20
which she had a duty to communicate with Rambally. At the =
time,=20
Rambally needed to fill the position of interim head of the =
Chemistry=20
Department, and needed Thomas-Smith=3Ds approval to do =
so. =20
Thomas‑Smith and Rambally also had the mutual task of =
coordinating=20
Mackin=3Ds teaching load as a =
chemistry=20
professor following a reduction in force. Thomas‑Smith =
made the=20
comment during a telephone conversation with Rambally concerning =
these=20
matters. This evidence was sufficient to raise a fact issue =
whether=20
the comment was made concerning a matter on which Thomas-Smith and =
Rambally had a common interest.
Mackin argues that =
Thomas-Smith=20
was not entitled to this instruction because the comment was: (1)=20
published to Knebel, who did not share the common interest; (2) =
not made=20
in good faith; and (3) made with malice.
As to the first =
contention, if=20
a defamatory statement is privileged, the casual or accidental =
presence of=20
a third party will not take it out of the privilege. =
Flowers v.=20
Smith, 80 S.W.2d 392, 393 (Tex. Civ. App.CAmarillo 1934, no =
writ). =20
The Restatement thus explains:
One privileged to =
publish=20
defamatory matter may, without abuse of the privilege use a method =
of=20
communication that involves an incidental publication of the =
defamatory=20
matter to persons to whom he is not otherwise privileged to =
publish it, if=20
the method, although not the only way in which the information can =
be=20
effectively communicated, is customary and sanctioned by business =
or other=20
necessity. Thus the fact that dictation to a stenographer =
involves=20
as a necessary incident the communication of the defamatory matter =
to her=20
does not make the sending of a dictated business letter to the =
person to=20
whom the writer is privileged to send it an abuse of the =
privilege. =20
So too, the fact that it is a business custom for clerks and =
secretaries=20
to open business correspondence of their superiors does not make =
the=20
sending of a business letter to the office of the privileged =
recipient an=20
abuse of the privilege. On the other hand, when the method =
of=20
communication is unnecessary and unsanctioned by the a custom =
based on=20
ordinary necessities of business, the publication of the =
defamatory matter=20
to persons not privileged to receive it that is incidental to =
those=20
methods is not privileged. Thus the use of a postcard in place of =
a letter=20
is an excessive publication. So too, the use of a telegram =
to=20
communicate information that could be effectively communicated in =
a sealed=20
letter is an excessive publication, although it would not be so if =
the=20
information, to be valuable, must be speedily=20
received.
Restatement (Second) =
of Torts=20
' 604 cmt. b =
(1977). In=20
this case, when the comment was made, Knebel was in =
Rambally=3Ds office to do =
filing, a task=20
Knebel occasionally performed while, as here, Rambally was on the=20
speaker-phone. Under=20
these circumstances, the publication of the comment to Knebel did =
not=20
itself conclusively negate the existence of a qualified privilege =
so as to=20
preclude a jury question on that defense.
Mackin=3Ds=20
contention that a jury question on qualified privilege should not =
have=20
been submitted because there is no evidence raising a fact issue =
on good=20
faith is based on the meaning of that phrase as an element =
of the=20
defense of official immunity, i.e., whether a reasonably =
prudent=20
Provost could have believed that her conduct was justified. =
However,=20
we can find no authority suggesting that the definition of good =
faith for=20
official immunity also applies to the defense of qualified=20
privilege. Therefore, the failure to submit a question on =
the=20
defense of qualified privilege cannot be affirmed on the lack of =
evidence,=20
if any, of good faith as it would apply to official=20
immunity.
Texas cases refer to =
the=20
concept of Agood =
faith@ in the context of =
qualified=20
privileges in an inconsistent manner. Some describe good =
faith as=20
being presumed where a conditional privilege exists (as if it is =
simply=20
the non-existence of malice), =
whereas=20
others refer to it as an element of the conditional privilege, =
and,=20
thus, something that must be proved before the privilege =
arises. In=20
addition, we have found no Texas cases which define Agood =
faith@ in this =
context. Because=20
no formal legal definition appears to exist, Agood =
faith@ would have had its =
commonly=20
understood meaning pursuant to the court=3Ds general charge to =
the jury. =20
Because the circumstances surrounding the making of the comment =
are at=20
least sufficient to raise a fact issue on whether it was made in =
good=20
faith, as that term is commonly understood, the failure to submit =
a=20
question on qualified immunity cannot be affirmed on a lack of =
evidence of=20
good faith.
Lastly,=20
Mackin argues that Thomas-Smith was acting with malice because she =
had no=20
evidence that Mackin and Rambally had a Alove@ =
or=20
Alover@ =
relationship that would influence Rambally=3Ds decision=20
making. Mackin further points to evidence that Thomas-Smith =
was=20
aware that Mackin was married with children.
In this=20
context, malice means making the defamatory statement with =
knowledge of=20
its falsity or in reckless disregard as to its truth. =
Masson v.=20
New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); New =
Times,=20
146 S.W.3d at 162. However, because there was evidence that =
the=20
comment was subject to a qualified privilege, Mackin had the =
burden to=20
prove malice, i.e., that Thomas-Smith actually entertained =
serious=20
doubts as to the truth of the comment. See Masson, =
501 U.S.=20
at 510; New Times, 146 S.W.3d at 162. Moreover, the =
qualified=20
privilege can exist even when the statement is untrue or its truth =
is=20
disputed. =20
Therefore, a lack of evidence of the truth of the comment would =
also not=20
preclude a jury question on the qualified privilege=20
defense.
Because the defense =
of=20
qualified privilege was properly raised by the pleadings and =
evidence, the=20
trial court=3Ds refusal to submit=20
Thomas-Smith=3Ds requested jury =
question on=20
that defense was reversible error. See Perez, 842 =
S.W.2d at=20
631. Therefore, we sustain Thomas-Smith=3Ds fifth issue to that =
extent,=20
reverse the judgment of the trial court, and remand the case to =
the trial=20
court for further proceedings; and we need not address=20
Thomas-Smith=3Ds remaining =
challenges to the=20
judgment.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Opinion=20
filed September 27, 2007.
Panel consists of =
Justices=20
Fowler, Frost, and Edelman.
=20
A =
directed=20
verdict is proper if no evidence of probative force raises a fact =
question=20
on an issue that is essential to the plaintiff=3Ds right of =
recovery. =20
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 =
S.W.3d=20
74, 77 (Tex. 2000).
=20
Although Thomas-Smith=3Ds motion for directed verdict, made in =
open court,=20
asserted that the comment was not defamatory, it gave no reason =
for that=20
assertion. However, because we conclude that the reason presented =
on=20
appeal is without merit, need not rule on whether the complaint =
was=20
preserved.
=20
A defamatory statement is one that is injurious to reputation, =
whether=20
true or false. See Bentley v. Bunton, 94 S.W.3d 561, =
587=20
(Tex. 2002).
=20
See =
generally=20
Eric Scott Fulcher, Note, Rhetorical Hyperbole and the =
Reasonable=20
Person Standard: Drawing the Line Between Figurative Expression =
and=20
Factual Defamation, 38 Ga. L. Rev.. 717, 720=20
(2004).
=20
See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 =
(Tex.=20
1988).
=20
In this context, a statement is made with malice when it is made =
with=20
either knowledge of its falsity or reckless disregard whether it =
is=20
true. Randall=3Ds, 891=20
S.W.2d at 646.
=20
Definitions of Aactual malice@ and Aclear and convincing proof@ were also submitted with this question =
but are=20
not material to our disposition.
=20
See, e.g., Edmundson, 222 S.W. at 183 (AIf the occasion is privileged, a proper =
and=20
sufficient motive is shown; and thereby the inference of malice is =
repelled, and in lieu thereof the presumption obtains that the=20
communication was made in good faith.@); Simmons v. Dickson, 110 Tex. =
230, 213=20
S.W. 612, 612 (1919) (reciting both standards).
=20
See, e.g., Cain, 878 S.W.2d at 582 (AQualified privileges against defamation =
exist at=20
common law when a communication is made in good faith . . . =
.@); Diamond Shamrock Ref. & Mktg. =
Co.,=20
844 S.W.2d 198, 210 (Tex. 1992) (same); Perry Bros. Variety =
Store, Inc.=20
v. Layton, 119 Tex. 130, 25 S.W. 310, 313 (Tex. 1930) (same); =
Mo.=20
Pac.Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 575 (1889)=20
(AWe understand the law to be that a =
communication=20
made in good faith, in reference to a matter in which the person=20
communicating has an interest, . . . is privileged . . . =
.@); Bradstreet, 9 S.W. at =
119-20=20
(Awhatever was said orally by defendants =
about=20
plaintiffs and their business was said in good faith, and in =
confidence to=20
their subscribers, who were by reason of their business relations =
with the=20
plaintiffs interested in knowing their financial and business =
standing,=20
and in answer to requests made by their subscribers in relation=20
thereto. This being so, the statements thus made by =
defendants are=20
privileged communications.@).
=20
This instruction stated, AWhen words are used in this charge in a =
sense that=20
varies from the meaning commonly understood, you are given a =
proper legal=20
definition, which you are bound to accept in place of any other=20
meaning.@
=20
See, e.g., Dun & Bradstreet, Inc. v. O=3DNeil, 456=20
S.W.2d 896, 898-99 (Tex. 1970); Bradstreet, 9 S.W. at 757;=20
Richmond, 11 S.W. at 557-58.
=20
See Tex. R. App. P. 47.1 (requiring an appeals court =
opinion to be=20
as brief as practicable in addressing the issues raised that are =
necessary=20
to final disposition of appeal).
=20
Senior Justice Richard H. Edelman sitting by=20
=
assignment. |